Soba Ram vs State of Jammu and Kashmir

O.P. Sharma, J.—The petitioner is a retired employee of the Public Works Department. His prayer is that although he was retired from

service in the year 1984 but pensionary benefits have been denied to him. Therefore, be seeks a direction to the respondents to grant him

pensionary benefits. The undisputed facts of the case are as follows.

The petitioner was engaged as Gang Cooli on daily wage basis on 15.7.1956 in PWD(R&B) Division. He was brought on regular establishment

in terms of the cabinet Decision No. 119 dated 14.3.1980 read with Government order No. PW458 of 1981 dated 1.9.1981 w.e.f. 9.2.1984. He

was retired from service w.e.f. 31.5.1986 on attaining the age of 55 years in terms of Article 226 of the Jammu and Kashmir Civil Service

Regulation. He approached the Labour Court against his premature retirement. The Presiding Officer Industrial Tribunal/Labour Court vide award

dated 15.7.1988 awarded him one month's pay in lieu of notice of retrenchment and 15 months pay as compensation at the rate of Rs. 561.40

besides gratuity amounting to Rs. 8421/. He was also awarded interest at the rate of 12%. So the amount of Rs. 16842/ in addition to one month's

pay was awarded to him by the Tribunal for his premature retirement. This award has been satisfied.

The petitioner now claims pensionary benefits on the ground that he was wrongly retired because he had to retire at the age of 60 years under

the proviso to Article 226(1) of the Civil Service Regulation.

Contention of Shri Pant is that since the petitioner was wrongly retrenched at the age of 55 years though he had to retire at the age of 60 years

as he belongs to inferior service, therefore, he is entitled to pension in terms of Article 177A of the Jammu and Kashmir Civil Service Regulation.

His other contention is that the petitioner was entitled to regularisation with effect from July 31, 1979 because by that time he had completed five

years as Permanent Daily Labourer in terms of Government order dated 14.3.1980.

The stand of the respondents is that the petition is not maintainable because the petitioner having obtained benefit under the Industrial Act cannot

now claim benefit under the service regulation. With regard to the age of retirement, it is stated that petitioner having not been appointed before

10.10.1966 he had to retire at the age of 55 years and was thus rightly retired. It is further stated that even if he is deemed to have been

regularised from July 1979 he would still not be eligible for pension.

During the course of arguments Shri Pant placed on record a copy of a circular dated 29.12.1995 issued by the Finance Department. By this

circular the provisions of work charged employee service rules 1972 read with Article 177A of the Jammu and Kashmir Civil Service Regulation

have been made applicable to contingent paid staff as well.

The first question is whether the petitioner belongs to inferior service which alone entitles him to be retained in service up to the age of 60 years.

Article 226 of the CSR reads as under :

226(1). An officer shall retire compulsorily on his attaining the age of 55 years, unless the competent authority considers him efficient and permits

him to remain in service. He may, however, be retained in service after the date of compulsory retirement with the sanction of the Government on

public grounds which must be recorded in writing but he must not be retained after the age of 60 years except in very special circumstances :

Provided that the Government servants who were in service on 10.10.1966 and were treated inferior as per Schedule II will retire on attaining the

age of 60 years.

It is admitted case of the petitioner that he was entitled to regularisation only as per cabinet Decision No. 119 dated 14.13.1980. It is also

admitted that he was regularised in February 1984. Assuming that he was regularised with effect from July 31, 1979 even then he was not a

Government servant belonging to inferior service because he was only working as Permanent or temporary daily labourer. So the argument of Shri

Pant that petitioner was entitled to regularisation from July 1979 and not from the date he was regularised is selfdefeated because if he was to be

regularised in terms of Government order he could not be held to be a member of the inferior service as he was not holding any civil post. So he

was rightly retired on attaining the age of 55 years.

Shri Pant then argued that the petitioner is entitled to the benefit of the Judgment dated 7.11.1991 passed in SWP No. 622/1991. This

judgment however has no application because the case was decided on the facts of the case. It has no application to the facts of this case as it

does not lay down any proposition of law.

However, having already got the benefit under the Industrial Act the petitioner cannot be allowed to be approbate and reprobate. He cannot

now claim any thing more. In R.N. Gosain v. Yashpal Dhir, AIR 1993 SC 352 it has been laid down that :

Law does not permit a person to both approbate and reprobate. This principle is based on the doctrine of election which postulates that no

party can accept and reject the same instrument and that ""a person cannot say at one time that a transaction is valid and thereby obtain some

advantage, to which he could only be entitled on the footing that it is valid, and then turn round and say it is void for the purpose of securing some

other advantage."" (See Verchures Creameries Ltd. v. Hull and Netherlands Steamship Co. Ltd., 1921(2) KB 608 at P. 612, Scrutton, L.J.).

According to Halsbury's Laws of England, 4th Fdn., Vol. 16, ""after taking an advantage under an order (for example for the payment of costs) a

party may be precluded from saying that it is invalid and asking to set it aside."" (Para 1508)

This applies to the facts of the case.

Lastly, there is a question on delay. The petitioner has retired in 1984. He did not challenge the order of retirement. Instead he claimed benefit

under Industrial law. This petition was filed in 1992, almost more than eight years after his retirement. In case is was entitled to pension perhaps the

delay and laches would not come in his way. But since he has not rendered qualifying service he cannot be permitted to challenge the order of

retirement after eight years. Lastly, the PDL employees are entitled to pension only if they satisfy the requirements of Article 177A of the J&K

Civil Service Regulations which areas as under :

177A. Notwithstanding anything contained in Art. 177A work charged employee who is brought on regular establishment and retires without

having been declared substantive or quasipermanent, shall be allowed to count 50% of his workcharged service as qualifying for pension together

with the period of service rendered on regular establishment. If the total of the two spells is 20 years or more, he will be eligible for pension under

preceding proviso.

So the petitioner has to prove that he had atleast rendered 30 years service before he was regularised. It is admitted that he was engaged in

1956. Even if he is regularised with effect from July 1979 he would have rendered 24 years service before regularisation. So 50% of this would be

12 years. From 1979 to 1984 the period would be five years. So it will come only between the 16 years to 17 years. He cannot make out the

deficiency. So on this count also he cannot claim pension. Since he was retired on the date he was to retire in terms of the proviso, the petition is

dismissed accordingly.